The ADA: Questions and Answers

Employment

Q. What employers are covered by the ADA, and when is the coverage
effective?

A. The employment provisions of title I of the ADA apply to
private employers, State and local governments, employment
agencies, and labor unions. Employers with 25 or more employees
were covered starting July 26, 1992, when title I went into effect.
Employers with 15 or more employees were covered two years later,
beginning July 26, 1994.

In addition, the employment practices of State and local
governments of any size are covered by title II of the ADA, which
goes into effect on January 26, 1992. The standards to be used
under title II for determining whether employment discrimination
has occurred depend on whether the public entity at issue is also
covered by title I. Beginning July 26, 1992, if the public entity
is covered by title I, then title I standards will apply. If not,
the standards of section 504 of the Rehabilitation Act will apply.
From January 26, 1992, when title II went into effect, until July
26, 1992, when title I went into effect, public entities were
subject to the section 504 standards.

Q. What practices and activities are covered by the
employment nondiscrimination requirements?

A. The ADA prohibits discrimination in all employment
practices, including job application procedures, hiring, firing,
advancement, compensation, training, and other terms, conditions,
and privileges of employment. It applies to recruitment,
advertising, tenure, layoff, leave, fringe benefits, and all other
employment-related activities.

Q. Who is protected against employment
discrimination?

A. Employment discrimination is prohibited against "qualified
individuals with disabilities." Persons discriminated against
because they have a known association or relationship with a
disabled individual also are protected. The ADA defines an
"individual with a disability" as a person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as
having such an impairment.

The first part of the definition makes clear that the ADA
applies to persons who have substantial, as distinct from minor,
impairments, and that these must be impairments that limit major
life activities such as seeing, hearing, speaking, walking,
breathing, performing manual tasks, learning, caring for oneself,
and working. An individual with epilepsy, paralysis, a substantial
hearing or visual impairment, mental retardation, or a learning
disability would be covered, but an individual with a minor,
nonchronic condition of short duration, such as a sprain,
infection, or broken limb, generally would not be covered.

The second part of the definition would include, for example, a
person with a history of cancer that is currently in remission or a
person with a history of mental illness.

The third part of the definition protects individuals who are
regarded and treated as though they have a substantially limiting
disability, even though they may not have such an impairment. For
example, this provision would protect a severely disfigured
qualified individual from being denied employment because an
employer feared the "negative reactions" of others.

Q. Who is a "qualified individual with a
disability?"

A. A qualified individual with a disability is a person who
meets legitimate skill, experience, education, or other
requirements of an employment position that he or she holds or
seeks, and who can perform the "essential functions" of the
position with or without reasonable accommodation. Requiring the
ability to perform "essential" functions assures that an individual
will not be considered unqualified simply because of inability to
perform marginal or incidental job functions. If the individual is
qualified to perform essential job functions except for limitations
caused by a disability, the employer must consider whether the
individual could perform these functions with a reasonable
accommodation. If a written job description has been prepared in
advance of advertising or interviewing applicants for a job, this
will be considered as evidence, although not necessarily conclusive
evidence, of the essential functions of the job.

Q. Does an employer have to give preference to a
qualified applicant with a disability over other
applicants?

A. No. An employer is free to select the most qualified
applicant available and to make decisions based on reasons
unrelated to the existence or consequence of a disability. For
example, if two persons apply for a job opening as a typist, one a
person with a disability who accurately types 50 words per minute,
the other a person without a disability who accurately types 75
words per minute, the employer may hire the applicant with the
higher typing speed, if typing speed is needed for successful
performance of the job.

Q. What is "reasonable accommodation?"

A. Reasonable accommodation is a modification or an adjustment
to a job or the work environment that will enable a qualified
applicant or employee with a disability to participate in the
application process or to perform essential job functions.
Reasonable accommodation also includes adjustments to assure that a
qualified individual with a disability has rights and privileges in
employment equal to those of nondisabled employees.

Q. What kinds of actions are required to reasonably
accommodate applicants and employees?

A. Examples of reasonable accommodation include making existing
facilities used by employees readily accessible to and usable by an
individual with a disability; restructuring a job; modifying work
schedules; acquiring or modifying equipment; providing qualified
readers or interpreters; or appropriately modifying examinations,
training, or other programs. Reasonable accommodation also may
include reassigning a current employee to a vacant position for
which the individual is qualified, if the person becomes disabled
and is unable to do the original job. However, there is no
obligation to find a position for an applicant who is not qualified
for the position sought. Employers are not required to lower
quality or quantity standards in order to make an accommodation,
nor are they obligated to provide personal use items such as
glasses or hearing aids.

The decision as to the appropriate accommodation must be based
on the particular facts of each case. In selecting the particular
type of reasonable accommodation to provide, the principal test is
that of effectiveness, i.e., whether the accommodation will enable
the person with a disability to do the job in question.

Q. Must employers be familiar with the many diverse
types of disabilities to know whether or how to make a reasonable
accommodation?

A. No. An employer is required to accommodate only a "known"
disability of a qualified applicant or employee. The requirement
generally will be triggered by a request from an individual with a
disability, who frequently can suggest an appropriate
accommodation. Accommodations must be made on an individual basis,
because the nature and extent of a disabling condition and the
requirements of the job will vary in each case. If the individual
does not request an accommodation, the employer is not obligated to
provide one. If a disabled person requests, but cannot suggest, an
appropriate accommodation, the employer and the individual should
work together to identify one. There are also many public and
private resources that can provide assistance without cost.

Q. What are the limitations on the obligation to make a
reasonable accommodation?

A. The disabled individual requiring the accommodation must be
otherwise qualified, and the disability must be known to the
employer. In addition, an employer is not required to make an
accommodation if it would impose an "undue hardship" on the
operation of the employer's business. "Undue hardship" is defined
as "an action requiring significant difficulty or expense" when
considered in light of a number of factors. These factors include
the nature and cost of the accommodation in relation to the size,
resources, nature, and structure of the employer's operation. Where
the facility making the accommodation is part of a larger entity,
the structure and overall resources of the larger organization
would be considered, as well as the financial and administrative
relationship of the facility to the larger organization. In
general, a larger employer would be expected to make accommodations
requiring greater effort or expense than would be required of a
smaller employer.

Q. Must an employer modify existing facilities to make
them accessible?

A. An employer may be required to modify facilities to enable
an individual to perform essential job functions and to have equal
opportunity to participate in other employment-related activities.
For example, if an employee lounge is located in a place
inaccessible to a person using a wheelchair, the lounge might be
modified or relocated, or comparable facilities might be provided
in a location that would enable the individual to take a break with
co-workers.

Q. May an employer inquire as to whether a prospective
employee is disabled?

A. An employer may not make a pre-employment inquiry on an
application form or in an interview as to whether, or to what
extent, an individual is disabled. The employer may ask a job
applicant whether he or she can perform particular job functions.
If the applicant has a disability known to the employer, the
employer may ask how he or she can perform job functions that the
employer considers difficult or impossible to perform because of
the disability, and whether an accommodation would be needed. A job
offer may be conditioned on the results of a medical examination,
provided that the examination is required for all entering
employees in the same job category regardless of disability, and
that information obtained is handled according to confidentiality
requirements specified in the Act. After an employee enters on
duty, all medical examinations and inquiries must be job related
and necessary for the conduct of the employer's business. These
provisions of the law are intended to prevent the employer from
basing hiring and employment decisions on unfounded assumptions
about the effects of a disability.

Q. Does the ADA take safety issues into
account?

A. Yes. The ADA expressly permits employers to establish
qualification standards that will exclude individuals who pose a
direct threat -- i.e., a significant risk of substantial harm -- to
the health or safety of the individual or of others, if that risk
cannot be lowered to an acceptable level by reasonable
accommodation. However, an employer may not simply assume that a
threat exists; the employer must establish through objective,
medically supportable methods that there is genuine risk that
substantial harm could occur in the workplace. By requiring
employers to make individualized judgments based on reliable
medical or other objective evidence rather than on generalizations,
ignorance, fear, patronizing attitudes, or stereotypes, the ADA
recognizes the need to balance the interests of people with
disabilities against the legitimate interests of employers in
maintaining a safe workplace.

Q. Can an employer refuse to hire an applicant or fire
a current employee who is illegally using drugs?

A. Yes. Individuals who currently engage in the illegal use of
drugs are specifically excluded from the definition of a "qualified
individual with a disability" protected by the ADA when an action
is taken on the basis of their drug use.

Q. Is testing for illegal drugs permissible under the
ADA?

A. Yes. A test for illegal drugs is not considered a medical
examination under the ADA; therefore, employers may conduct such
testing of applicants or employees and make employment decisions
based on the results. The ADA does not encourage, prohibit, or
authorize drug tests.

Q. Are people with AIDS covered by the
ADA?

A. Yes. The legislative history indicates that Congress
intended the ADA to protect persons with AIDS and HIV disease from
discrimination.

Q. How does the ADA recognize public health
concerns?

A. No provision in the ADA is intended to supplant the role of
public health authorities in protecting the community from
legitimate health threats. The ADA recognizes the need to strike a
balance between the right of a disabled person to be free from
discrimination based on unfounded fear and the right of the public
to be protected.

Q. What is discrimination based on "relationship or
association?"

A. The ADA prohibits discrimination based on relationship or
association in order to protect individuals from actions based on
unfounded assumptions that their relationship to a person with a
disability would affect their job performance, and from actions
caused by bias or misinformation concerning certain disabilities.
For example, this provision would protect a person with a disabled
spouse from being denied employment because of an employer's
unfounded assumption that the applicant would use excessive leave
to care for the spouse. It also would protect an individual who
does volunteer work for people with AIDS from a discriminatory
employment action motivated by that relationship or
association.

Q. Will the ADA increase litigation burdens on
employers?

A. Some litigation is inevitable. However, employers who use
the period prior to the effective date of employment coverage to
adjust their policies and practices to conform to ADA requirements
will be much less likely to have serious litigation concerns. In
drafting the ADA, Congress relied heavily on the language of the
Rehabilitation Act of 1973 and its implementing regulations. There
is already an extensive body of law interpreting the requirements
of that Act to which employers can turn for guidance on their ADA
obligations. The Equal Employment Opportunity Commission, which has
issued regulations implementing the ADA's title I employment
provisions, published a technical assistance manual with guidance
on how to comply and will provide other assistance to help
employers meet ADA requirements. Equal employment opportunity for
people with disabilities will be achieved most quickly and
effectively through widespread voluntary compliance with the law,
rather than through reliance on litigation to enforce
compliance.

Q. How are the employment provisions
enforced?

A. The employment provisions of title I of the ADA are enforced
under the same procedures applicable to race, sex, national origin,
and religious discrimination under title VII of the Civil Rights
Act of 1964. Complaints regarding actions that occur on or after
July 26, 1992, may be filed with the Equal Employment Opportunity
Commission or designated State human rights agencies. Remedies may
include hiring, reinstatement, back pay, court orders to stop
discrimination, and reasonable accommodation. Compensatory damages
may be awarded for actual monetary losses and for future monetary
losses, mental anguish, and inconvenience. Punitive damages may be
available as well, if an employer acts with malice or reckless
indifference. Attorney's fees may also be awarded.